Nevitt v. Woodburn

• Decision Date: 11 October 1895
• Citation: 160 Ill. 203,43 N.E. 385
• Parties: NEVITT v. WOODBURN.
• Court: Illinois Supreme Court

160 Ill. 203

43 N.E. 385

NEVITT

v.WOODBURN.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, Second district.

Action by Charles H. Woodburn, as administrator de bonis non of the estate of George W. Woodburn against Edward H. Nevitt and others, sureties on the bond of Peter Ege as executor of the will of said George W. Woodburn. Judgment for plaintiff in the circuit court before John D. Crabtree, J., which was affirmed by the appellate court (56 Ill. App. 346) on proceedings in error, and defendant Nevitt appeals. Affirmed.Jarvis Dinsmoor, for appellant.

John G. Manahan, for appellee.

MAGRUDER, J.

This is an action of debt, begun on April 28, 1893, in the name of the people for the use of Charles H. Woodburn, administrator de bonis non of the estate of George W. Woodburn, deceased, against the appellant, Edward H. Nevitt, and others, sureties upon the bond of Peter Ege as executor of the will of said George W. Woodburn. Appellant was the only one of the defendants who was served. Pleas were filed to the declaration. Replications were filed to the pleas. The cause was tried before a jury, and the trial resulted in verdict and judgment for the plaintiff for $7,000 debt and $2,412 damages; the latter being the sum of $1,841, hereinafter mentioned, and interest thereon.

George W. Woodburn died on April 19, 1872, in Whiteside county, and left a will in which he appointed his nephew Peter Ege his executor, with power to sell his real estate for the payment of his debts, and for the purpose of raising a fund sufficient to pay out of the interest thereon to his wife $1,000 per year for her support during her lifetime, and at her death to go to his son James H. Woodburn during his lifetime, etc. Ege was appointed executor on October 2, 1872, and executed a bond, dated on that day, in the sum of $7,000, with appellant and two others as sureties, conditioned, as required of executors by the statute then in force, that he would make and exhibit in the county court a true and perfect inventory, etc.; that he would render to said court a just account of his doings as executor, and well and truly fulfill the duties enjoined upon him in said will; that he would pay and deliver the legacies and bequests therein contained to the parties thereto entitled, so far as the estate of the testator should extend, according to the value thereof, and as the law should charge him; and in general, that he would do all other acts that might be required of him by law. Rev. St. 1874, p. 105, c. 3, § 7. On October 13, 1882, Ege was removed, and his letters testamentary were revoked, by the county court of Whiteside county, for waste and mismanagement of the estate, and neglect and refusal to perform the duties of his trust. Subsequently Charles H. Woodburn was appointed by said court administrator de bonis non, with the will annexed. This suit is brought under section 39 of the administration act, which provides as follows: ‘In all cases where any such executor or administrator shall have his letters revoked, he shall be liable on his bond to such subsequent administrator, or to any other person aggrieved, for any mismanagement of the estate committed to his care; and the subsequent administrator may have and maintain actions against such former executor or administrator for all such goods, chattels, debts and credits as shall come to his possession, and which are withheld, or have been wasted, embezzled or misapplied, and no satisfaction made for the same.’ 1 Starr & C. St. p. 208.

In order to establish a breach of the conditions of the bond, plaintiff introduced in evidence a decree of the circuit court of Whiteside county entered on July 9, 1888, and, in connection therewith, another decree of said court entered in the same cause theretofore, on October 9, 1882. As will appear by reference to Woodburn v. Woodburn, 123 Ill. 608, 14 N. E. 58,16 N. E. 209, a bill had been filed in said court by James H. Woodburn, the son and heir of George W. Woodburn, deceased, against the widow, Phebe A. Woodburn, to enjoin a suit at law and correct a mistake in a deed, and the widow had there in filed a cross bill against her son to set aside a certain agreement. A bill had also been filed by the widow against Peter Ege, the executor, for an accounting. There were also then pending in said circuit court two appeals taken by said executor, Peter Ege, from two orders entered by the county court in the matter of said estate,-one an order made upon the final report of said executor to the county court, and the other an order directing the executor to pay over to the widow a certain sum found to be due from him. These chancery causes and appeals from the county court were consolidated, and one decree was entered therein on October 9, 1882, which is the decree introduced in evidence as above stated. That portion of said decree which has reference to the final report of the executor to the county court recites that ‘the court being fully advised in the premises in the matter of the appeal of Peter Ege, as executor of the last will and testament of George W. Woodburn, deceased, from the county court of said county on the final report of said executor, doth find that there is due the estate of said deceased, from the said executor, the sum of $8,604.52’; and the decree then proceeds to order and adjudge that Ege pay said sum, with interest from the date of the decree, within 30 days, and, in default thereof, that execution issue, etc. This decree of October 9, 1882, was taken by writ of error for review to the appellate court, and was thence brought by appeal to this court, and the decision upon it is reported as Woodburn v. Woodburn, supra. We thete held that so far as said sum of $8,604.52-‘with which Ege was charged as executor, and for which judgment was rendered against him in favor of the estate’-was made up of a certain note for $3,050 and interest thereon, it was erroneous, and we said, ‘We decide nothingmore against the indebtedness found due from Ege, as executor, to the estate of George W. Woodburn, than in respect of this note,-that he should not have been charged therewith.’ The judgment entered in that case was a judgment reversing the decree and judgment of the circuit court, and remanding the cause for further proceedings conformable to the opinion. The decree of July 9, 1888, recites that James H. Woodburn had sued out from the appellate court a writ of error, directed to said Phebe A. Woodburn and James Ege, to reverse in part said decree of October 9, 1882, and had prosecuted the same to a hearing in said court; that said Phebe A. Woodburn had appealed from the judgment of the appellate court in said cause to the supreme court of Illionis, and had prosecuted her appeal to final judgment; that the parties appeared by counsel, and the mandate and opinion of the supreme court were filed and read; that the said Ege was persent pro se; that the cause was referred to the master to state the account against the said Ege in accordance with the decision of the supreme court. And the decree, after the statement of the account by the master was read and heard, adjudges ‘that by eliminating the said note of James H. Woodburn for the original sum of $3,050, in accordance with the order of the supreme court, and correcting said decree made in said cause October 9, 1882, the balance against said Peter Ege shall be the sum of $1,369.13; and the same shall be, with interest from said 9th day of October, A. D. 1882, the amount due said estate from said Peter Ege, and which is found by the court to be the total amount, the sum of $1,841.00, which said last-mentioned sum said Peter Egeis * * * ordered to pay * * * within thirty days,’ etc.

1. The main point made by appellant is that the trial court erred in refusing to permit him to introduce certain evidence for the alleged purpose of showing that the sum stated in the declaration to have come into the executor's hands, to wit, $1,841, was the proceeds of certain lands sold by the executor as trustee. Upon this branch of the case, counsel for appellant refers us to a large number of authorities holding that executors may act in a double capacity,-as executors, by virtue of their office, and as agents or trustees, under a warrant of attorney; that only the powers and duties of executor, which result from the nature of that office, devolve upon an administrator with the will annexed; that the authority to act as trustee does not devolve upon such administrator; that sureties on the bond of an executor are not liable for the proceeds of real estate; that default in the payment of the proceeds of real estate, arising from the execution of a trust power in the will, does not contravene any condition of the executor's bond: that the liability to pay over such proceeds is not in consequence of the bond; and hence that such liability cannot be enforced against the sureties. We do not deem it necessary to discuss these authorities, or to pass any opinion upon the doctrine announced by them. It is sufficient to say, so far as the present case is concerned, that the decree of 1888 was produced in evidence, and read in connection with the decree of 1882. It thus appears that judgment was rendered against Peter Ege, the principal in the bond, for money due from his as executor to the estate of George W. Woodburn. This finding that the executor, as such, owed the money to the estate is binding on the surety. ‘As a general rule, sureties upon official bonds are not concluded by a decree or judgment against their principal, unless they...